There’s something to be said for waiting before starting to write. That’s not my nature. I want to get things out first. I type very well but nobody can do it as quickly as my brain, so I often dictate into a phone and email myself. Then, I make any corrections and additions, and create the graphics and email preferences.
But this saga of Sinclair Broadcast Group trying to buy Tribune Media that has been going on for more than a year and suddenly failing last week — supposedly failing — is full of interesting details.
I wrote about a lot of them, Tuesday night. That was mostly background. You know how little I admire Sinclair and the people who run it. Tonight, you’ll see exactly what went wrong for the deal and what I think should be done. Let’s just say what went wrong could’ve been a lot of what I wrote Tuesday night!
I’m going to suggest starting by reading that last post, if you haven’t. It gives a lot of background about why Sinclair is so despised — that I’ve written about for months but conveniently put in one place — so there’s no sense repeating it here.
But first, the latest, and that’s Cox Media Group — one of the best corporations owning TV stations out there, and a private one — is exploring putting itself up for sale.
Yesterday, FTVLive’s Scott Jones got a secret copy of the talking points Cox managers are supposed to use while talking to employees. Let’s face it, “talking points” is another phrase meaning public relations. In other words, they’re trying to convince the workers to keep working extra hard because everything is going to be great! (I hope you used your best Tony the Tiger when you read that.)
Of course, that’s not how employees are feeling. When your company suddenly sets itself up to be bought, there is lots of uncertainty. You know spending will go down and jobs will not be filled, so the company’s financials look more attractive. And being bought by another major established company could lead to layoffs. But you know that’s not in the talking points which you can see below in this six-page slideshow.
Cox’s 14 TV stations are pretty good and most are highly-rated ones. From left to right, by row, they’re the ABC affiliate in Atlanta; ABC and independent in Orlando; Fox in Boston; CBS in Seattle; NBC in Pittsburgh; ABC and independent in Charlotte; Fox and CBS in Jacksonville; Fox in Memphis; CBS in Dayton, Ohio; Fox in Tulsa, Okla.; and also aÂ â€œsupply-side platform that brings automation and data-driven targeting to the buying and selling of television advertisingâ€ called Videa.
There are also 61 radio stations, 4 daily newspapers, 11 non-daily papers, 16 digital brands, and one local cable channel.
FTVLive’s Scott Jones also got a market analyst report from Wells Fargo about how much Cox Media may be worth. The answer it gives is $2.65 billion, but consider many factors including the number of willing buyers, whether the stations get split up, and whether Tribune goes back on the market.
See Tuesday’s post for a lot more links to, and details on, the rest of Atlanta-based Cox.
So FCC Chairman Ajit Pai was arguably putting himself on the line while supporting the Sinclair-Tribune merger when surprisingly, last week, he said in a statement:
â€œBased on a thorough review of the record, I have serious concerns about the Sinclair-Tribune transaction. â€¦ The evidence we’ve received suggests that certain station divestitures that have been proposed to the FCC would allow Sinclair to control those stations in practice, even if not in name, in violation of the law. â€¦ When the FCC confronts disputed issues like these, the Communications Act does not allow it to approve a transaction. Instead, the law requires the FCC to designate the transaction for a hearing in order to get to the bottom of those disputed issues.â€
Pai embraced the merger so much, he’s under investigation by the FCC’s inspector general for allegedly greasing the wheels by bringing back the UHF discount rule weeks before the deal was announced. That way, the new, larger company could still meet the FCC ownership limit of 39 percent of U.S. households, rather than vastly exceeding them.
— UPDATE: The FCC inspector general cleared Chairman Ajit Pai of being unfairly biased in favor of the Sinclair Broadcast Groupâ€“Tribune Media merger. —
Then yesterday â€“ at an awkward moment for Pai, Sinclair and Tribune â€“ a Washington-based U.S. Appeals Court rejectedÂ a challenge to the FCC reinstating the UHF discount that couldâ€™ve and could still pave the way for the merger. The three-judge panel was comprised of two President Barack Obama nominees and one President Trump nominee. They dismissed the case on technical grounds without considering its merits, ruling the activist groups that filed suit hadn’t shown they’d be injured by the consolidation at the heart of their case. What this really means is Tribune could be worth more if it pulls out of the deal, because other potential suitors will have more flexibility to make offers. Tribune can leave Sinclair at the alter/chuppah on Aug. 8.
The UHF discount, started in 1985, let companies with UHF (channels 14+) stations only count half the coverage area towards the ownership limit. But that was when there was a big difference between watching channels 2 to 13, and channels 14+. With today’s technology â€“ and cable, satellite and computers added to the mix, and broadcast signals digital rather than analog â€“ the quality looks the same. The rule was ended in 2016, just before the end of President Obamaâ€™s administration.
So why bring back the rule last year? For big corporations, up against the ownership limit, urging Pai to reinstate it so they could buy more stations â€“ exactly what Sinclair needed to merge with Tribune.
According to Variety, Commissioner Mignon Clyburn, the sole Democrat on theÂ FCC at the time, warned it would diminish diversity, competition, and localism, and she predicted a wave of mergers and acquisitions.
Variety wrote at the time,
â€œShe showed a chart from BloombergÂ showing how major station groups benefitÂ from the discount. The largest, ION Media, reaches 33.7% of the country with the discount, but 65.2% without. Univision reaches 23.6% with the discount, but 44.8% without. When the discount was repealed last summer, station groups were allowed to retain their existing holdings, but they would be forced to divest assets in the event of a merger or corporate takeover.â€
But Pai argued the FCC would start examining the media ownership cap and reinstating the UHF discount would give the FCC a â€œblank slate.â€ The examination started in December.
A year later, in April 2018, Variety reported a panel of appellate judges asked why theÂ FCCÂ reinstated the rule and raised some concerns. Two of the three judges on the D.C. Circuit Court of AppealsÂ also expressed concerns the FCC had restored a rule that was considered obsolete.
According to Variety, Judge Gregory Katsas noted to the FCC’s attorney, James Carr, that while the FCC
â€œmight want to raise the cap,â€ there was â€œno reason for thinking at that the end of the day, part of the solution will be keeping the discount.â€
â€œI think that is probably fair, your honor,â€ Carr replied. He argued that the UHF discount shouldnâ€™t be eliminated without considering its implications to the 39% cap.
Meanwhile, CEO Chris Ruddy of conservative TV news networkÂ Newsmax said, â€œThe judges on the D.C. Circuit reviewing the FCCâ€™s UHF discount were left scratching their heads wondering why the rule was re-instated when everyone â€” Republicans and Democrats alike â€” agree that the discount is an analog relic and makes no sense in a digital world.
â€œThe FCC should avoid the appearance of impropriety and proceed with a transparent national ownership cap proceeding to set a level playing field before approving any merger that benefits just one company, namely Sinclair.â€
He also said he told President Trump strict limits on national TV ownership are needed not only to keep a lid on Sinclair, but also on the â€˜liberalâ€™ broadcast networks.
â€œI told him [Trump] about my opposition because Sinclair would reach 70 percent of U.S. homes and — while I donâ€™t disagree necessarily with Sinclair’s editorial point of view — I did not want to see NBC and ABC and the big liberal networksâ€¦[reaching] 70 percent.
â€œI think that would have been very dangerous if NBC was dictating the local news coverage in Des Moines, Iowa,â€ Ruddy said.
Keep in mind, Ruddy’s Newsmax and also Sinclair want to challenge Fox News Channel for conservative news viewers.
Politico summed it up by saying,
â€œSinclair has been a frequent target for Democrats and liberal groups disturbed by reports that it favors President Donald Trump in its coverage via â€˜must-runâ€™ segments pumped to its network of stations.â€
â€œgave a disproportionate amount of neutral or favorable coverage to Trump during the campaignâ€ while airing negative stories on Hillary Clinton, and Politico reportedÂ â€œon a boast by Trump’s son-in-law Jared Kushner that the president’s campaign had struck a deal with the broadcast group for better media coverage. Sinclair disputed the characterization, saying it was an arrangement for extended sit-down interviews that was offered to both candidates.â€
Also, it was Trump who nominated Pai for the agency’s top post, so most experts felt the merger would eventually get the go-ahead due to President Trump’s public comments praising the media company, which boasts a conservative-leaning, anti-mainstream media news operation.
My last post mentioned many different cases of using shell companies under Sinclair’s control to still broadcast on more stations than allowed. Those so-called sidecar arrangements let Sinclair keep a stake in the revenue and programming of the spun-off stations.
I even asked, â€œWhy was the FCC the last to find out? Or did it know and ignore the facts for political reasons?â€
Today, I found a new example of a virtual triopoly (three stations in a market), when the FCC only allows duopolies (two stations in a market) and only under certain conditions.
So what changed? Politico reports problems in three cities.
First, in Chicago, the plan was to sell
â€œWGN to Steven Fader, a Maryland business associate of Sinclair Executive Chairman David Smith who oversees car dealerships.â€
â€œThe draft order circulated by Paiâ€™s office â€¦ said Sinclair’s actions around the divestiture of TV station WGN in Chicago â€˜includes a potential element of misrepresentation or lack of candor.â€™â€
Ouch! Not good for a company licensed to use the public airwaves. I used another example below and then offered a suggestion about what should happen to Sinclair.
â€œThe FCC feels Smith selling the asset to his friend and business associate presents a problem,â€
and I’ll say the price of $60 million is ludicrous, considering the station is worth hundreds of millions of dollars.
According to The Chicago Tribune,
â€œThe WGN services agreement would have kept Sinclair in charge of everything from programming to ad sales while giving it an option to buy back the station for the same price, subject to adjustments, within eight years.â€
Sinclair was also supposed to sellÂ WPIX-New York, the nation’s largest TV market by far, for a measly $15 million to that sameÂ Cunningham Broadcasting, a company with close ties to the Smith family. That caused Pai to say he was concerned Sinclair’s proposed sales in Chicago and New YorkÂ may have attempted to deceive the government.
Adweek said also troubling
â€œwere the deals to sell stations in Dallas and Houston to Cunningham Broadcasting.â€
The Tribune reported,
â€œThe proposal also included an option to buy the stations back.â€
â€œSeparate filings with the FCC last month by the American Civil Liberties Union and conservative news outlet Newsmax Mediaâ€ â€¦ raised â€œquestions about whether Sinclair would continue to control some of the stations it proposes to divest.â€
So Politico said,
â€œPai announced an administrative law judge would review the station spinoff issues. The FCC takes that step when companies fail to persuade it that a transaction, even with conditions, would be in the public interest.â€
Ars Technica reported the decision by FCC commissioners to adopt a Hearing Designation OrderÂ and have a judge review aspects of the deal was unanimous. Other options were
â€œdenying the merger outright, approving the merger, or approving it with conditions.â€
Click here for the full order. One of the key parts reads:
â€œAmong these applications were three that, rather than transfer broadcast television licenses in Chicago, Dallas, and Houston directly to Sinclair, proposed to transfer these licenses to other entities. The record raises significant questions as to whether those proposed divestitures were in fact “sham” transactions. By way of example, one application proposed to transfer WGN-TV in Chicago to an individual (Steven Fader) with no prior experience in broadcasting who currently serves as CEO of aÂ company in which Sinclair’s executive chairman has a controlling interest. Moreover, Sinclair would have owned most of WGN-TV’s assets, and pursuant to a number of agreements, would have been responsible for many aspects of the station’s operation. Finally, Fader would have purchased WGN-TV at a price that appeared to be significantly below market value, and Sinclair would have had an option to buy back the station in the future. Such facts raise questions about whether Sinclair was the real party in interest under Commission rules and precedents and attempted to skirt the Commission’s broadcast ownership rules. Although these three applications were withdrawn today, material questions remain because the real party-in-interest issue in this case includes a potential element of misrepresentation or lack of candor that may suggest granting other, related applications by the same party would not be in the public interest.â€
This keeps getting better!
Politico said an administrative law judge was called in 2015 with the proposed Comcast-Time Warner Cable deal. The companies later abandoned it, rather than go through the hearing process. AT&T ended up with Time Warner, at least for now, after a federal judge allowed it without conditions, but the Justice Department is appealing.
By last Wednesday, Reuters reported Sinclair announced it would not divest the three TV stations currently owned by Tribune
â€œto â€˜expediteâ€™ the transaction after the FCC suggested the company would still control the stations,â€ and â€œtwo FCC officials who did not wish to be identified said Wednesday they believe the merger will not be able to proceed.â€
The Justice Department is also still reviewing the deal and the FCC may have even more concerns.
Sinclair denied any effort to mislead the FCC and issued this long statement:
â€œWhile neither Sinclair or Tribune have seen the draft HDO, Chairman Pai’s comments and press reports indicate the FCC is questioning the proposed divestitures in Dallas, Houston and Chicago. Accordingly, in order to address such concerns and to expedite the Tribune transaction, Sinclair has withdrawn the pending divestitures of stations inÂ DallasÂ (KDAF) andÂ HoustonÂ (KIAH) to Cunningham Broadcasting Corporation and Tribune has withdrawn the pending divestiture of WGN inÂ ChicagoÂ to WGN-TV LLC.Â Sinclair intends to request permission from the FCC to put the Dallas and Houston stations into a divestiture trust to be operated and sold by an independent trustee following the closing of the Tribune acquisition.Â Sinclair expects to have identified and entered into a purchase agreement with a third party buyer or buyers for theÂ DallasÂ and HoustonÂ stations prior to closing.Â As a result of the withdrawal of the application relating to WGN, Sinclair will simply acquire that station as part of the Tribune acquisition, which is, and has always been, fully permissible under the national ownership cap.
â€œThroughout the FCC review process of the Tribune merger and divestitures, Sinclair has had numerous meetings and discussions with the FCCâ€™s Media Bureau to make sure that they were fully aware of the transaction’s structure and basis for complying with FCC rules and meeting public interest obligations. During these discussions and in our filings with the FCC, we have been completely transparent about every aspect of the proposed transaction. We have fully identified who the buyers are and the terms under which stations would be sold to such buyer, including any ongoing relationship we would have with any such stations after the sales. All relevant agreements documenting such terms as required by FCC rules have been filed. While we understand that certain parties, which oppose the transaction object to certain of the buyers based on such buyers’ relationships with Sinclair, at no time have we withheld information or misled the FCC in any manner whatsoever with respect to the relationships or the structure of those relationships proposed as part of the Tribune acquisition. Any suggestion to the contrary is unfounded and without factual basis.
â€œWhile the structures put forth to the FCC throughout the process have all been in compliance with law and consistent with structures that Sinclair and many other broadcasters have utilized for many years with the full approval of the FCC, we have consistently modified the structure in order to address any concerns raised by the FCC. As a result and in light of the ongoing and constructive dialogue we had with the FCC during the past year, we were shocked that concerns are now being raised. Nonetheless, we have decided to move forward with these additional changes to satisfy the FCC’s concerns.
â€œThere can be no question regarding misrepresentation or character given that Sinclair has fully disclosed all terms of all aspects of the transactions it has proposed. The FCC’s reported concerns with sales to certain parties have been eliminated in light of the withdrawals of the applications relating to Dallas, Houston and Chicago. Accordingly, we call upon the FCC to approve the modified Tribune acquisition in order to bring closure to this extraordinarily drawn-out process and to provide certainty to the thousands of Tribune employees who are looking for closure.â€
So what’s next for Tribune? Will it stick by the deal as it said it intends? We don’t know for sure yet, but it has until Aug. 8 and I already mentioned reasons to separate from Sinclair.
This video was made before Cox threw its assets into the ring.
One big winner, so far, could be 21st Century Fox Inc.Â chairman Rupert Murdoch, who has become close with President Trump.
Bloomberg notes, over the decades, Fox and Sinclair haveÂ been in business together, but the conservative organizations have also been rivals.
Sinclair owns dozens of local Fox affiliates. So does Tribune. Last year, Fox tried unsuccessfully to outbid Sinclair for Tribune.
In the meantime, the companies divide the retransmission fees paid by cable and satellite operators (meaning what you and I pay). Networks say local stations have more value because of them.
Former Fox exec Preston Paddon remembers in his blog,
â€œBy 1992, Congress found that cable systems were paying carriage fees to the non-broadcast channels but not to the broadcasters, and that this was unfair to the broadcasters.â€
It’s why we pay for free local TV if we’re not watching with an antenna.
Anyway, Sinclair buying Tribune and its own Fox affiliates would’ve given it a stronger negotiating hand in talks with Fox about how to divvy up those fees.
So after losing out on Tribune,
â€œFox threatened to pull its affiliates from Sinclair and switch the stations to an independent broadcaster. Eventually, in order to satisfy regulators, Sinclair agreed to sell some Tribune stations to Fox, which, in turn, said it would renew Sinclair’s affiliation with more than two dozen stations.â€
Now, Fox may be able to buy even more stations.
And â€œSinclair may soon compete with Fox News for right-leaning TV viewersâ€ may not come to pass. It has reportedly been talking about hiring former Fox News stars to create a block of conservative programming using WGN America, which it would acquire, or The Tennis Channel, which it already owns. Former Trump advisor Boris Epshteyn and former CBS correspondent Sharyl Attkisson already work for Sinclair. Politico reported Sinclair has even approached current and former Fox talent such as Jeanine Pirro, and Greta Van Susteren and Eric Bolling. I already wrote Talks with former Fox host Bill O’Reilly fell apart. Sinclair won’t admit to any of that.
Also, the Justice Department appealed the ruling that let AT&T buyÂ Time Warner. That’s good for Fox at the moment because it involves Fox News Channel rival CNN, and may have kept Comcast/NBC from buying most of Fox, as it downsizes to become â€œNew Fox.â€ Murdoch prefers Disney/ABC buying the assets, which the government already approved, and â€œthe Murdoch family would see moreÂ tax benefitsÂ in that deal.â€
So whatâ€™s President Trumpâ€™s beef? You already read about his relationship with Sinclair.
Tuesday night, he tweeted it was â€œsad and unfair that the FCC wouldn’t approve the Sinclair Broadcast merger with Tribune,â€ but Republicans control the FCC, he appointed Ajit PaiÂ as chairman, and Pai has been accused of being too cozy with Sinclair. But except for appointments, the FCC is independent from the White House.
Deadline reported Sinclair commentator BorisÂ Epshteyn, who used to work for Trump, is for the deal. So is Steve Bannon, who got friendly with Sinclair stations in swing states before the election. And Trump has to like Sinclair’s publicity.
The only Democratic FCC commissioner at the moment tweeted her response to the president with just one word: disagree.
But Trump’s friend Rupert Murdoch â€“ who also owns TV stations and the pro-Trump Fox News Channel â€“ is said to be against the merger. That would be especially so if Sinclair starts putting conservative news on cable through WGN America and The Tennis Channel. Trump is so chummy with Murdoch, he called in December to congratulate him on the Disney-21st Century Fox deal.
I wrote another friend, NewsMax chief Chris Ruddy, is definitely against Sinclair-Tribune, as well.
Furthermore, the president compared Sinclair-Tribune to letting â€œLiberal Fake News NBC and Comcast (get) approvedâ€ which happened under the Obama administration and FCC. Trump criticized it as being too big.
He didn’t mention it’s on the level of AT&T-Time Warner, which a federal judge recently allowed but the Justice Department is appealing.
The difference between Sinclair-Tribune and Disney-Fox â€“ and NBC-Comcast and AT&T-Time Warner â€“ is that the first pair involve companies that make content but donâ€™t distribute it. In the second pair, NBC and Time-Warner make content, but Comcast and AT&T actually distribute it — Comcast through cable and AT&T by DirecTV satellite, both of which are paid subscription services.
In April, Axios reported President Trump defended Sinclair after the company started
â€œforcing conservative, pro-Trump editorials on itsâ€Â news anchors and â€œDeadspin created aÂ video of Sinclair broadcastersÂ spurning â€˜fake news.â€™â€
Viewers of Sinclairâ€™s 200-plus local stations had already seen â€œcentrally drafted opinion items reflecting its conservative, often pro-Trump positions,â€ but not by their own local anchors and certainly not side-by-side along with so many others.
That was at 6:34am. Keep in mind, a great number of Sinclairâ€™s stations are affiliated with the networks.
Then, at 6:58, Trump took on CNNâ€¦
and got pushback from its PR department.
CNN reports some Sinclair journalists said they were unhappy with President Trump’s portrayal of the company as â€œconservativeâ€ because they want to be recognized for their straight-forward, nonpartisan work. Despite their stations being forced to air pro-Trump commentaries and stories, most journalists at local stations don’t want to be labeled by the president or anyone else.
As for Sinclair’s claim of more localism if the deal goes through, FTVLive’s Scott Jones found Sinclair station WSYX-Columbus, Ohio, doing a series of reports called â€œGator Weekâ€ (as opposed to Shark Week, that has been on the Discovery Channel since 1988). Still, Jones thought it was â€œoddâ€ considering â€œyou don’t see many alligators in Ohio.â€ Then, he found out about other Sinclair stations doing the same thing, â€œincluding WGXA (Macon, Ga.), WPMI (Mobile, Ala.), WPEC (West Palm Beach) and others.â€ He joked he wasn’t sure it was a must-run.
I, myself, found Shark Week on a retweet from the Cunningham Broadcasting station in mid-Michigan. Maybe WBSF was allowed to go a different route.
WBSF’s â€œAboutâ€ section says it’s â€œowned and operated by Cunningham Broadcasting Corporation and receives certain services from an affiliation of Sinclair Broadcast Group.â€ So there are three terms/phrases: owned, operated, and â€œreceives certain services from an affiliation of Sinclair Broadcast Group.â€ Maybe that’s because just above, it says to send all press releases to firstname.lastname@example.org. So maybe â€œcertain services from an affiliation of Sinclair Broadcast Groupâ€ includes press releases.
Below, there are nbc25news email addresses for comments, webmaster (the Sinclair owned, operated, and apparently â€œaffiliatedâ€ websites all look similar), contests and weather.
And below that are Sinclair (sbgi.net) email addresses for corporate, two for national advertising, and the secondary person for closed-captioning concerns.
So maybe those are all the â€œcertain services from an affiliation of Sinclair Broadcast Group.â€
That’s all very interesting since I knew Sinclair controlled two other stations in the same location!
NBC affiliate WEYI has on its â€œaboutâ€ section (with the same look) that it’s â€œowned and operated by Howard Stirk Holdings, LLC and receives certain services from an affiliation of Sinclair Broadcast Group.â€ That entire phrase is merely a substitution for Armstrong Williamsâ€™ company and we established in my last post that WEYI is one of a few Howard Stirk stations run by Sinclair. They also use the nbc25news email, but it’s more appropriate here.
Then there’s Fox affiliate WSMH that has on its â€œaboutâ€ section (with the same look, of course) that it’s â€“ wait for this! â€“ actually â€œowned and operated by Sinclair Broadcast Group.â€ The email addresses are all wsmh.com. The â€œreceives certain servicesâ€ phrase is not there.
I did notice after the paragraph with the name of the owner, etc., and ties to Sinclair, is another called â€œCommunity Involvement.â€
What’s funny is that all three stations start with â€œThe owner and Sinclair Broadcast Group, LLC. continue to broaden its recruiting outreachâ€¦â€
That means â€œthe ownerâ€ can be whichever company actually holds the station license and it’s not named here, just referred to as â€œthe owner,â€ out of laziness.
But what’s especially funny here is saying â€œThe owner and Sinclair Broadcast Groupâ€ when Sinclair is really the owner!
But seriously, how does Sinclair operate the three stations with the same address, etc.? We learned in my last post that’s not allowed in Baltimore, with Sinclair, Cunningham and Deerfield Media. In fact, in Nov., 2012,Â TVNewsCheckÂ reported the situation as â€œa virtual triopoly.â€
The FCC’s webpage called Broadcast Ownership Rules clearly states in its section, Local TV Multiple Ownership:
â€œAn entity is permitted to own up to two TV stations in the same Designated Market Area if either:
â€œThe service areas â€“ known as the digital noise limited service contour â€“ of the stations do not overlap
â€œAt least one of the stations is not ranked among the top four stations in the DMA (based on audience share), and at least eight independently owned TV stations would remain in the market after the proposed combinationâ€
That’s the summary in its entirety! The stations cover the same area. An old website reports â€œeight full-power television stations in theÂ Flint-Saginaw-Bay CityÂ market,â€ the others being CBS and ABC affiliates, two PBS affiliates and a religious broadcaster.
And the NBC, Fox and CW stations are controlled by the same company, for all intents and purposes. I’d bet the CW station is not in the top four rated, but the rules are for an entity â€œto own up to two TV stationsâ€ â€“ just two!
(The MyNetworkTV affiliate is on a sub-channel of the CBS affiliate.)
I just found the mid-Michigan situation by accident and wonder how many other cities this has been going on in.
TVNewsCheck’s Harry A. Jessell put it this way, and then made lists of winners and losers at this point:
â€œIts mishandling of its merger application has badly stained its permanent FCC record in a way that could greatly complicate its future regulatory dealings. â€¦ And a liar is what the FCC has accused Sinclair of being by obfuscating the fact it would continue to control three major market stations that it told the FCC it would spin off to other broadcasters to comply with ownership limits.
â€œYou see, the FCC acts on the honor system. It presumes that you are obeying all the rules and expects you to confess any infractions. It’s the principal way the FCC polices those it regulates. That’s why lying â€“ the ever-polite FCC calls it â€œmisrepresentationâ€ or â€œlack of candorâ€ â€“ is taken seriously and is the FCC equivalent of a capital crime. â€¦ As the lawyers pointed out to me this week, once indicted for misrepresentation as Sinclair has now been, it sticks because it goes to the broadcaster’s basic character qualifications to be a licensee. It cannot buy or sell a station or even renew a license until it resolves the character question. Sinclair’s best move now is to walk away from the merger and promise, no, swear on a stack of Bibles, that it will never, ever mislead the FCC again.
â€œSinclair has no one but itself to blame for this fiasco. It pushed too hard to keep as many of the Tribune stations as it could and somewhere along the line lost sight of the larger goal â€“ get the transfer through the FCC and get to closing. â€¦ (David Smith) kept going back to the FCC (and the Justice Department) demanding more and more. Ironically, he will likely end up with nothing, except maybe a new set of regulatory hassles.â€
Bloomberg quotes B. Riley FBR Inc. analyst Barton Crockett, who said in a note he has
â€œnever seen such â€˜harshâ€™ language from the FCC about an applicant for a merger. The â€˜vitriolicâ€™ tone of the FCC statement makes it dubious that Sinclair and Tribune will be able to come back with divestitures that will satisfy the FCC.â€
Bottom line: Anyone who knows me knows I can be tough, especially on myself. The people who run and invest in the nation’s largest media company have been breaking rules all over the place for many years. It’s time the FCC gets extremely serious so it’s taken seriously when protecting the public interest from those using the public airwaves.
Does anyone remember the RKO situation?Â Have a seat and look for similarities. (I wrote this with information from several Wikipedia listings.)
RKO General was the mainÂ holding companyÂ through 1991 for the non-core businesses of theÂ General Tire and Rubber Company.
It had been in broadcasting since 1943, and General Tire bought the RKO Radio PicturesÂ movie studioÂ in 1955, but dissolved it in 1959. From then until 1991, it operated six TV stations and more than a dozen radio stations. It also holds the record for the longest licensing dispute in television history.
The trouble began in 1965. RKO General applied for license renewal of KHJ-TV in Los Angeles (now KCAL-Channel 9). A local group, Fidelity Television, challenged it, charging RKO with second-rate programming, and later and more seriously, that General Tire conditioned its dealings with certain vendors on the basis they’d buy advertising time on RKO General stations. These â€œreciprocal trade practicesâ€ are considered anti-competitive. RKO and General Tire executives testified before theÂ FCC and rejected the accusations. Four years later, in 1969, the commission issued an initial finding that Fidelity’s claims were correct.
That same year, RKO faced a license challenge for WNAC-TV in Boston (now WHDH-Channel 7, not to be confused with the old WHDH-Channel 5), again charged with reciprocal trade practices.
Four years later, in 1973, the FCC ruled in favor of RKO in the Los Angeles case, pending findings in the still-ongoing Boston investigation. The next year, in 1974, when RKO applied for license renewal of WOR-TV in New York (now WWOR-Channel 9, technically Secaucus, NJ), the FCC conditioned the renewal on the Boston case as well.
SIDEBAR: Another Boston FCC case lasted 15 years â€“ not the record, but from sign-on to sign-off â€“ and involved the former WHDH-Channel 5. The DuMont Television NetworkÂ applied for a construction permit for the channel, but shut down its network before getting it. The Boston Herald TravelerÂ Corporation got the license, signed on in 1957, and shortly after, the FCC started investigating allegations of impropriety in the granting of the television license.Â (Allegedly, the controversy was over luncheon meetings the newspaper’s chief executive had with an FCC commissioner during the original licensing process.) So the old channel 5 (WHDH) never had a license longer than six months at a time while the standard was three years.
Eventually, the FCC ordered comparative hearings and in 1969, a local group called Boston Broadcasters was granted a construction permit for a new station on channel 5 called WCVB after it promised to air more local programming than any other station in America at the time. That’s even though the old channel 5 (WHDH) often broadcast more local programming than any other commercial TV station in Boston. Herald-TravelerÂ CorporationÂ lost its court case in 1972 and WCVB went on the air in its place. Luckily, everyone on the old channel 5 moved to the new channel 5 which still broadcasts from the suburb of Needham, since the old WHDH-TV refused to sell its studios, transmitter and tower to the new WCVB, which is now owned by Hearst.
NOW BACK TO THE STORY: In June, 1974, an administrative law judge renewed the WNAC-Channel 7 Boston license even after finding General Tire and RKO General had engaged in reciprocal trade practices. In December, 1975, a company competing for the license called Community Broadcasting asked the FCC to revisit the case. It alleged General Tire bribed foreign officials, maintained aÂ slush fundÂ for U.S. political campaign contributions, and misappropriated revenue from overseas operations. RKO denied all the allegations during a year-and-a-half series of proceedings. Then, in July, 1977, General Tire admitted to an eye-popping litany of corporate misconduct, including the bribery and slush fund charges, in order to settle an action brought by theÂ Securities and Exchange Commission. But the TV situation wasn’t over yet. Still, the RKO proceedings dragged on!
Finally, in 1980, after a half-decade of hearings and investigations, the FCC stripped RKO of WNAC’s license. It found RKO â€œlacked the requisite characterâ€ to be the station’s licensee and gave as examples, the reciprocal trade practices of the 1960s, false financial filings by RKO, and General Tire’s gross misconduct in non-broadcast fields.
But the worst was RKO’s dishonesty before the FCC. During hearings, RKO withheld evidence of General Tire’s misconduct, including the fact the SEC had been investigating the company in 1976. RKO also denied it had improperly reported exchanges of broadcast time for various services, despite indications to the contrary in General Tire’s 1976 annual report. So the FCC found RKO had displayed a â€œpersistent lack of candorâ€ over its own and General Tire’s misdeeds, which threatened â€œthe integrity of the Commission’s processes.â€Â That FCC ruling meant RKO lost the KHJ-TV Los Angeles and WOR-TV New York licenses as well.
RKO appealed to the District of Columbia U.S. Court of Appeals, which upheld the revocation solely on the basis of RKO’s lack of candor. It wrote in its opinion, â€œ[t]he record presented to this court shows irrefutably that the licensee was playing the dodger to serious charges involving it and its parent company.â€ But the court interpreted the candor issue so narrowly that it applied only to WNAC-TV, and ordered rehearings for WOR and KHJ. RKO General appealed again, this time to the U.S. Supreme Court. In 1982, SCOTUS refused to review the license revocation, and it was over. RKO General sold WNAC’s assets to New England Television (NETV), a new company from the merger of Community Broadcasting and another competitor for the license, the Dudley Station Corporation. The FCC granted a full license to NETV on channel 7, which it renamed WNEV-TV.Â Since then, the station changed its call letters toÂ WHDH-TV, had low ratings,Â and was sold to Ed Ansin’s Sunbeam Television Corporation. (This WHDH has no relation to the old WHDH-Channel 5.)
It could’ve been worse. In 1983, the FCC began taking competing applications for all of RKO’s broadcasting licenses, but Congress passed a law sponsored by Sen. Bill Bradley requiring the commission to automatically renew the license of any commercialÂ VHF-TV station relocating to a state without one, meaning New Jersey and Delaware. Two months later, RKO General officially changed WOR’s city of license from New York toÂ Secaucus, NJ, where it remains on paper.Â The FCC made the station move its main studio there and step up coverage of events in the Garden State.Â Still, WOR maintained its identity as a New York station. (It’s now owned by Fox, which also owns WNYW-Channel 5, and got rid of channel 9’s newscasts.)
In 1984, RKO sold its Radio Networks operation to United Stations. In 1986, under pressure, RKO put WOR up for sale. MCA/UniversalÂ won the bidding war and the FCC approved the purchase. In 1987, MCA changed the call letters toÂ WWOR. (Remember the slogan Universal 9, about 15 years before NBCUniversal was formed?)
RKO was lucky it sold WOR. In 1987, an FCC administrative law judge found it unfit to be a broadcast licensee due to a long history of deceptive practices he called the worst case of dishonesty in FCC history, and ordered RKO to surrender the licenses for its two remaining two TV stations and 12 remaining radio stations. RKO declared all of the employees responsible for the misconduct had been fired and appealed, claiming the ruling was deeply flawed.Â But the FCC made it clear it would probably reject any appeals and strip the licenses, and urged RKO to sell everything before that became necessary.
In 1988, under an FCC-supervised deal, the license of KHJ-Los Angeles was granted to Fidelity, the company that had originally challenged RKO General. Fidelity then transferred it to Disney, before it bought ABC, for $324 million. RKO got about two-thirds and Fidelity got the rest. By 1991, everything was sold. (Fort Lauderdale-Miami’s WAXY-FM 105.9 â€“ which labeled itself â€œan RKO radio stationâ€ before giving its call letters, near the end â€“ was sold in 1990. That was 28 years ago! Unbelievable!)
“When people are making comparisons between your station group and RKO General, you know you have screwed up.”
I think there are too many changes going on in the industry right now as technology improves so quickly. Jessell mentioned certain former FCC commissioners would’ve gone the RKO route with Sinclair. I agree because now more than ever, broadcasters use the public airwaves and must pay us back with public service under tougher rules than its competitors. And the FCC needs complete and total honesty, with so much on its hands.
Sinclair needs to be brought down similarly for all it has done, with the same family as owners and no concern for anything but profit over the decades. The stations should be separated. Local broadcasters or broadcasting groups with no other industry interests should be given first shot at the stations. Then, they can hire experienced people with original ideas, and decisions would be made right there in the studio building.
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